Fifteen
persons were put up for trial before the Additional Sessions Judge, Ahmedabad
(Rural) at Narol for rioting with deadly weapons, committing the murder of Govindbhai
Girdharbhai and attempting to commit the murders of Arvind Kumar Kanjibhai and Vinodchandra
Keshavlal. The trial Judge acquitted them of all the charges and aggrieved
thereby the State of Gujarat preferred an appeal. The High Court
admitted the appeal against seven out of the fifteen acquitted and dismissed it
summarily as regards others. The appeal was ultimately allowed and all the
seven accused were convicted under Sections 148 and 326 read with section 149
IPC for causing grievous hurt to Govindbhai. For the injuries caused to Arvind
and Vinod some of them were convicted under sections 324 and 326 IPC (mimoliciter)
respectively and the rest with the aid of Section 149 IPC.

For
the above convictions rigorous imprisonment ranging from 1 to 3 years and fines were imposed with a direction that the
substantive sentences shall run concurrently. Assailing their convictions and
sentences the seven accused have filed one of these two appeals (Criminal
Appeal No.381 of 1989).

The other
appeal (Criminal Appeal No.382 of 1989) has been filed by Arvind for setting
aside the acquittal of the seven accused in respect of the charges under
section 302/149 and 307/149 (two counts) and convicting them there under;

alternatively,
for enhancement of their sentences for the convictions recorded against them by
the High Court. Both the appeals have been heard together and this judgment
will dispose of them.

Bereft
of details the prosecution case is as under:

In
December, 1980 there was an election of Bavla Nagar Panchayat which was mainly
contested by two groups, one consisting of the members of the Bharwad community
and the other of Patels. In that election success of the Patels was more
pronounced than that of the Bharwads. Since then the relations between the two
communities, who reside in two separate localities, in the town of Bavla were strained. On June 2, 1981 at or about 6 P.M. about 40 to 50 members of the Bharwad community, including
the accused persons, came out of their locality armed with deadly weapons like
sticks, dharias and farsis and proceeded towards the market shouting that they
would beat and kill the members of the Patel community. With that object in
view they attacked three persons of Patel community in succession. The first
attack was on Govindbhai who, owing to the injuries inflicted upon him, expired
on the following day, that is, on June 3, 1981.

The
second attack was on Arvind who saved his life by entering into the shop of one
Bipinbhai. Lastly the mob went to the shop of Vinod, dragged him out and
assaulted him.

Immediately
after he was assaulted, Arvind went to Police Station and lodged an information
about the same. On that information Sub-Inspector Chauhan (PW 12) of Bavla
Police Station registered a case and took up investigation.

Arvind
and the other two injured were taken to V.S.Hospital, Ahmedabad and admitted therein. As
it was subsequently revealed that the assaults on Govindbhai and Vinod were
parts of the same transaction, S.I. Chauhan carried out a joint investigation
in respect of all the three assaults and on completion thereof submitted chargesheet.

The
accused-appellants pleaded not guilty to the charges levelled against them and
asserted that they had been falsely implicated.

To
bring home the charges levelled against the accused- appellants, the
prosecution examined the two injured Arvind and Vinod , Bipinbhai (PW 5). Anil
Kumar and Natwarbhai (PW 7) as eye witnesses to prove one or the other episode
of the entire incident. Besides, other witnesses including doctors, were
examined to corroborate their evidence. No witness was, however, examined on
behalf of the defence.

The
learned trial Judge discussed the evidence adduced by the prosecution and
concluded that none of the eye- witnesses could be relied upon. The High Court
in its turn reappraised the evidence and held that findings of the trial Judge
were perverse.

Mr. Ramaswamy,
the learned counsel appearing for the accused-appellants criticised the
judgment of the High Court on the ground that it ought not have set aside the
judgment of the trial Judge merely because a different view of the evidence
could be taken, more so, when the latter was based on a detailed and proper
discussion and appreciation of the evidence. The other contention of Mr. Ramaswamy
was that even if it was assumed that the High Court was justified in setting
aside the acquittal it was not at all justified to convict the
accused-appellants under Sections 326 IPC simpliciter or with the aid of
Section 149 IPC as from the evidence of the eye-witnesses and the doctors the
only conclusion that could be drawn was that the accused persons shared the
common object of committing the offence of simple hurt punishable either under
Section 323 IPC or, at best, under Section 324 IPC. In that view of the matter,
Mr. Ramaswamy submitted, the convictions of the accused- appellants were liable
to be accordingly altered and having regard to the fact that since the offences
were allegedly committed more than fourteen years had elapsed and each of the
accused appellants had already served about 10 months of imprisonment the
substantive sentence imposed upon them might be reduced to the period already
undergone.

Mr. Lalit,
the learned counsel appearing in support of the appeal preferred by Arvind, on
the other hand contended that having reversed the order of acquittal for
justifiable reasons, the High Court ought to have convicted the accused-
appellants under Section 302 read with Section 149 IPC for causing the death of
Govindbhai. According to Mr. Lalit the facts and circumstances leading to the
death of Govindbhai unmistakably proved that the common object of the unlawful
assembly was to commit his murder and consequently, as members of the unlawful
assembly, each of the accused persons was liable to be convicted under Section
302 read with Section 149 IPC. To bring home his contention Mr. Lalit submitted
that the evidence on record clearly established that to wreak their vengeance
the accused-appellants along with other members of their community and armed
with deadly weapons covered a distance of about 4 kms. and recknessly and
brutally assaulted three members of the Patel community, one of whom was
dragged out of his shop. Mr. Lalit urged that when those facts and
circumstances were considered in the light of the injuries sustained by Govindbhai
the only conclusion that could be drawn was that the common object of the
unlawful assembly was to commit murder. Mr. Lalit next urged that even if it
was held that the common object of the unlawful assembly was to cause grievous
hurt to Govindbhai, at least, the accused-appellant Nos. 1 and 2 namely, Bharwad
Jakshibhai Nagjibhai and Bharwad Bhikhabhai Nathabhai must be held to be guilty
of the offences under Section 302 read with Section 34 IPC as the injuries
caused by them with an iron ringed stick and dhariya respectively resulted in
his death. Mr. Lalit lastly submitted that in case the findings of the High
Court regarding the nature of offences committed by the accused-appellants were
to be held unexceptionable, the sentence of imprisonment for 3 years imposed
for the conviction under Section 326 IPC for assault on Govindbhai was wholly
inadequate. Needless to say, the learned counsel appearing for the State
supported the entire judgment of the High Court.

Law is
now well settled that though the Code of Criminal Procedure does not make any
distinction between the powers of the Appellate court while dealing with an
order of conviction or of acquittal, normally the Appellate Court does not
disturb an order of acquittal in a case where two views of the evidence are
reasonably possible. But the above principle of is not applicable where the
approach of the trial Judge in dealing with the evidence is manifestly
erroneous and the conclusions drawn are wholly unreasonable and perverse. In
the instant case we find that the High Court was fully conscious, and did not
transgress the bounds of its appellate powers while dealing and reversing the
order of acquittal.

As
already noticed the prosecution case was that the successive assaults on Govindbhai,
Arvind and Vinod were parts of the same transaction and outcome of one and the
same common object and not isolated incidents. Surprisingly however, the trial
Judge appraised the evidence of the eye witnesses treating the three incidents
of assault as distinct and unconnected with each other. The High Court was,
therefore, fully justified in observing that the basic approach of the trial
Judge in appreciating the prosecution evidence was absolutely erroneous, as it proceeded
as if the three assaults were for different motives or common objects.

With
the above observation, the High Court posed the basic question as to whether
the prosecution succeeded in proving that 40-50 members of Bharwad community
formed an unlawful assembly and considering the evidence of the eye witnesses
answered it in the affirmative. The High Court also observed that even the defence
did not seriously challenge the above part of the prosecution case and that the
learned counsel appearing for the accused did not dispute that question. Before
us also Mr. Ramaswamy in his usual fairness did not also join issue with the
above finding of the High Court.

The
next question, which the High Court took up for consideration, was whether the
seven appellants were members of the unlawful assembly. In dealing with this
question and answering the same in favour of the prosecution the High Court
first set out at length the basic principles the trial Judge was generally
required to follow for appreciating the evidence of eye witnesses and
particularly of injured eye witnesses after culling the same from the judgments
of this Court in Appabhai vs. State of Gujarat (AIR 1988 SC 696, Bhoginbhai Hirjibhai
vs. State of Gujarat (AIR 1983 SC 753), Sohrab vs. State of M.P. (AIR 1972 SC
2020) and State of U.P. vs. Anil Singh (AIR 1988 SC 1998). The High Court then
discussed the evidence of the eye witnesses threadbare in the light of other
evidence and, after detailing the significant departures the trial Judge made
from those principles, concluded that he was not at all justified in discarding
their evidence.

To
appreciate whether the above conclusion of the High Court is sustainable or not
we have carefully gone through the entire evidence on record. Having done so we
find that the High Court was fully justified in reversing the acquittal as the
trial Judge's approach in appreciation of evidence was patently wrong and
perverse. While on this point we may also mention that some of the reasons
given by the trial Judge are of such flimsy character that they did not merit
any consideration in the appellate Court. Besides the trial Judge was not at
all justified in relying upon minor discrepancies regarding details to discard
the evidence of the eye witnesses which the High Court noticed and rightly
ignored. However, to avoid prolixity we refrain from detailing or discussing
the perverse findings of the trial Judge more particularly when we find the
High Court has dealt with them properly and exhaustively.

Now
that we have found that the finding of the High Court that the seven
accused-appellants were members of an unlawful assembly which caused injuries
to three members of the Patel community is unassailable we have to next
ascertain, keeping in view the respective contentions of the learned counsel
appearing in support of the appeals, whether the finding of the High Court that
the common object of that assembly was in cause grievous hurt- and not to
commit murder is correct or not. In arriving at the above finding the High Court
observed:

"In
our view looking at to the evidence on record as it stands, it would be
difficult to infer that the common object of the unlawful assembly was to kill
members of the Patel community. In any set of circumstances benefit of doubt is
required to be given to the accused because of different versions given by
different witnesses with regard to the words uttered by the members of the
unlawful assembly. Further the fact that the dharia blow is not given by a
share edge to the deceased and witness Arvindbhai and also no fatal injury is
caused by dharia to witness Vinubhai suggests that their common object was not
to kill members of Patel Community.

P.W. 7
Natwarlal Mangaldas has deposed that members of the unlawful assembly were
uttering "beat the Patels on Sight". Same is the version given by
witness Dahyabhai. Same is the version given by injured witness Vinubhjai Keshavlal
Patel. From this it cannot be definitely stated that the common object of this
unlawful assembly was to kill any members of the Patel community, but it can be
safely inferred that their common object was to belabor and beat members of the
Patel community. In this view of the matter, in our view the respondents i.e.
the accused Nos. 1,2,5,7,9,10 and 13 who are members of unlawful assembly and
identified as such by the witnesses and whose presence at the scene of offence
is proved beyond reasonable doubt would be liable to be punished for the
offence under Section 326 read with Sec. 149 of the Indian Penal Code in view
of injuries to deceased Govindbhai." Since the nature, number and location
of injuries inflicted are some of the indicia to ascertain the common object,
and for that matter the offences committed. It will be appropriated at this
stage to detail the medical evidence adduced during the trial. It appears from
the evidence of Dr. Vijay Ratilal Sheth (PW 13) who first examined Govindbhai
in the hospital that he had the following injuries on his person:

(vi) fissure
fracture of right parietal bone. and the postmortem examination report of Dr. Mukesh
Shah (PW 11) shows that besides the above external injuries the deceased had
the following internal injuries:

(i) huge
neamotoma over the scale over occioital and right parietal region.

(ii)
fracture of right parental and right temporal bones with a second fracture of
anterior canal fosse on rightside just near the midline and.

Considering
the nature of injuries inflicted on the above three persons and the discrepancy
about the utterances of the mob we are the complete agreement with the
reasoning of the High Court as quoted earlier and the conclusion drawn therefrom
that it could not be conclusively inferred that the could object of the
assembly was to commit the murder.

If
really a mob of 50-60 persons wanted to commit. murder nothing prevented them
from inflicting severer injuries on the persons of Govindbhai and the two
victims. more so,when some of them were armed with share cutting and dangerous
weapons. The fact that the accused-appellants Nos. 1 and 2 used blunt edges of
the weapons and not their share edges goes a long way to show that they did not
also share a common intention to will Govindbhai when they assaulted him.

We
are, therefore unable to accent the contention of Mr. Lalit that the members of
the unlawful assembly shared the common object or accused-appellants Nos. 1 and
2 shared the common intention of committing the murder of Govindbhai.

Coming
now to the contention of Mr. Ramaswamy that the facts that most of the members
of the assembly only carried ordinary sticks. a few of which according to the
prosecution were recovered from the houses of the accused-appellants clearly
indicated that the common object of the unlawful assembly was only to cause
simple hurt we can only say that even if we accept his contention, still the
accused- appellants would be liable for the offence of causing grievous hurt as
Section 149 IPC applies not only to offence actually committed in pursuance of
the common object but also the offence that members of the unlawful assembly
knew was likely to be committed; and it would be impossible in the facts of
this case to hold that the members of the unlawful assembly did not know that
grievous hurt was likely to be committed by an unlawful assembly, as large as
the one with which we are concerned here some of whom were armed with dangerous
weapons. Accordingly, even if the common object be not placed as high as murder
as contended by Mr. Lalit, the conviction of the accused-appellant under
Section 326 IPC simpliciter or 326 read with 149 IPC as the case may be for the
assaults on Govindbhai and Vinod has got to be upheld.

That
brings us to the question of sentence as raised by Mr. Lalit it is undoubtedly
true that considering the manner in which the accused-appellants assaulted Govindbhai
the sentence of three years imposed by the High Court for that offence errs on
the side of leniency. But then we cannot be oblivious of the fact that since
the offences were committed more then 14 years have elapsed and during this
long period the appellants have gone through the ordeal of a protected criminal
trial and of the two appeals. Having given our anxious consideration to these
competing claims we do not feel inclined to enhance the sentence.

In the
result both the appeals are dismissed. The accused - appellants. who are on
bail. shall now surrender to their bail bonds to serve out the sentences
imposed by the High Court.